State v Ageva (No 2) [2019] PGNC 119; N7835 (24 April 2019)

N7835

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 406 OF 2018

THE STATE

-V-

ADRIAN RIKAHA AGEVA
(NO 2)

Buka: Toliken, J.
2019: 23^rd, 24^th April

CRIMINAL LAW – Sentence after trial – Sexual penetration of child under 16 years of age – Victim 13 years old – Aggravating factors considered - Child left school due to ridicule and taunting by fellow students - Impact of offence on victim considered - Prevalence of offence - Mitigating factors considered - Low level trust - Nil priors - Prior good character - Need for deterrent sentence - Appropriate sentence – 8 years less time in custody – Suspension not appropriate – Criminal Code Ch. 262, s 229A(1).

Cases Cited

Avia Aihi v The State (No.3) [1983] PNGLR 92)
Goli Golu v The State [1979] PNGLR 653
The State v Eric Puropuro (2014) N5959
The State v Nawa (No.2) (2009) N 3732
The State v Kutetoa (2005) N2814
The State v George Taunde (2005) N2807
The State v Rommy Frank; CR 607of 2016 (Unnumbered and unreported judgment dated 06 March 2019)
The State Langer Tonu; CR 405 of 2013 (Unreported and unnumbered judgment dated 04^th October 2016)
The State v Paul Wakara; CR 914 of 2006( Unnumbered and unreported judgment dated 19 September 2006)
The State v Adrian Rikaha Ageva; CR 607 of 2016 (No.1) (Unreported and unnumbered judgment dated 18^th April 2019)

Counsel:

S Dusava, for the State
F Lugabai, for the Prisoner

JUDGMENT ON SENTENCE

24^th April, 2019

1. TOLIKEN, J: Adrian Rikaha Ageva, on 18^th of April 2019, I convicted you after trial for one count of sexual penetration of a child under the age of 16 years in contravention of Section 229A (1) of the Criminal Code Ch. 262 (the Code).
   
2. You were charged that on 22^nd December 2017 at Kiopan village, Hanahan, Buka, AROB you sexually penetrated one Claire Alcon, a child under the age of 16 years.
   
3. I administered the allocutus yesterday and also heard submissions from counsel. This is my judgment on your sentence.
   
4. The brief facts for the purpose of sentencing you are these. You were at your uncle Mulanga’s house on the date in question, when between 12.00p.m and 2.00p.m, you noticed the victim and her aunt Sandra cross the village field in front of your uncle’s house. They were on their way to the banana patch to cut banana leaves for the victim’s mother to make a mumu. You followed them into the banana patch and confronted them. You grabbed the victim and dragged her into the bushes where you removed her clothes as well as your trousers and then sexually penetrated her by inserting your penis into her vagina. You were intoxicated when you committed this offence. For the full judgment on verdict see The State v Adrian Rikaha Ageva (No.1) (2019) N7832.
   

THE OFFENCE

5. Section 229A (1) of the Code relevantly provides for the offence in the following terms:
   

229A. Sexual penetration of a child.

(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

Penalty: Subject to Subsections (2) and (3), imprisonment for a term not exceeding 25 years.

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

6. While 25 years is the maximum penalty, it does not necessarily follow that you will get the maximum. This is because the maximum is usually reserved for the worst instances of offending for any offence at all. Each case of offending must be visited with a sentence that is appropriate to the circumstances of that case. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1983] PNGLR 92)
   

ISSUE

7. So is this a worst case of sexual penetration of a girl under the age of 16 years? At the outset I must say that it is not despite the State’s assertion as we shall presently see. Hence I must impose an appropriate sentence for you befitting the circumstances of your case, and that essentially is the issue for me to consider.
   

ANTECEDENTS

8. You are now 27 years old and come from Kiopan village, Hanahan, in the Halia Community Government Area, here on Buka Island. You come from a family of 6 siblings and are single. You did your Primary education at Hanahan Primary School and you did your Lower and Upper Secondary at Hutjena Secondary School. You then attended the Lae Polytech graduating with a Certificate in Applied Sciences. After graduating you were employed for three years (2013 -2015) with the Climate Change Office. You returned home and was employed by Raibro Construction Ltd as a Laboratory Technician from 2016 to 2017. You are a Roman Catholic and this is your first offence.
   

ALLOCUTUS

9. In your brief address to the Court you apologised to God, the Court and the victim for your offence. You asked for mercy and leniency.
   

SUBMISSIONS

10. Your lawyer Mr. Lugabai submitted that you ought to be served a sentence of 8 years, a portion of which may be suspended to allow you to return to your community and be under probation supervision. Counsel cites the following factors to justify such a sentence:
    
    • You are a first time offender. But for this isolated incident you would be a good citizen. You are educated and had been employed by two organizations prior to your arrest.
    • You used minimal violence and did not subject the victim to any inhuman sexual indignities.
    • You did not cause any actual physical injuries to the victim.
    • You did not infect her with any Sexually Transmitted infection.
    • You acted alone.
    • There was no relationship of trust, authority or dependency between you and the victim, but if there were it would be a distant one.
    • You surrendered voluntarily to the police.
      
11. Ms. Dusava, on the other hand submitted in behalf of the State that you ought to be served a strong deterrent and punitive sentence. She called for a sentence of 25 years (incidentally the maximum) of which there should not be any suspension so that the sentence can have its desired effect on you and would be offenders. Counsel said such a sentence is justified because despite your lack of priors there was remarkable age difference between you and the victim, breach of trust, as you were an uncle to the victim, this was a planned and calculated attack on the victim and the prevalence of the offence here in Bougainville and the fact that in forcing a trial the victim had to re-live her ordeal in Court.
    
12. Counsel said that you watched the victim grow up and were obsessed with her and became a sexual predator. You have not given any reason, Counsel said, why you raped your own niece. You have left the victim traumatized and stigmatized. You are educated and hold yourself out to be a leader of your family, but you lived a life of drunkenness and carry yourself around like someone with no responsibility and with no respect for the law.
    
13. The victim has stopped going to school and has been having counselling since the incident. It is evident that damage had been done and it will take a long time for her to recover.
    

MITIGATING FACTORS

14. I accept the factors enumerated by Mr. Lugabai as mitigating your offence. I only hasten to add here that prior to your offence you were of good character.

AGGRAVATING FACTORS

15. I also accept the factors cited by Ms. Dusava as going against you. The only exception I take with those is her assertion that a serious breach of trust is involved here. I have not been shown the exact nature of your relationship with the victim, though, I do accept that there is some trust but it may be distant as submitted by Mr. Lugabai.
    
16. I must, however, echo Ms. Dusava’s submission that this offence is too prevalent here in Bougainville. Too many girls fall victim to sexual predators of every age group, and what is alarming is that even mere boys (mere children themselves) are involved, not to mention those who are well along in years who ought to know better. The victim’s education was disrupted which as often the case will have a disastrous effect on her prospects of a better life from a good education. She had to leave school because she was being constantly taunted and ridiculed by fellow students. For a child, and a female child at that, the stigma attached to such treatment by peers often has long lasting effect and the victim may feel worthless and despondent for a good part of her life.
    

SENTENCING TREND

17. What has been the sentencing trend for this type of offence? The law reports are replete with reported and unreported and unnumbered judgments for this type of offence. Both counsel cited some of these cases. I will refer only to those that were decided here in Buka and perhaps a couple of my own Alotau cases.
    
18. The State v Kutetoa (2005) N2814 per Cannings, J: The prisoner there pleaded guilty to sexually penetrating his step-daughter who was under 16 years of age. She was 10 years old. This was serious case which among other things involved a serious breach of trust and the victim suffered physical injuries. There was lack of consent also but the offender was a first time offender, did not use a weapon or aggravated violence, co-operated with the police and apologized to the victim even though no compensation was attempted. He was sentenced to 17 years imprisonment.
    
19. The State v George Taunde (2005) N2807 per Cannings, J: The offender pleaded guilty to sexually penetrating his 13 year old niece. There was a breach of trust, lack of consent and no attempt was made to compensate the victim. The offender, however, did not use any aggravated physical violence and co-operated with the police and was remorseful. He was sentenced to 10 years imprisonment.
    
20. The State v Nawa (No.2) (2009) N 3732 per Lenalia, J. The offender there was found guilty after trial for sexually penetrating the 14 year old victim. The offender (a teacher) lured the victim and her friend to follow him to a village in Wakunai, Central Bougainville. The victim was bringing up the rear when she had a feeling that something bad will happen to her and so she made a u-turn and headed back to where they had come from. The offender followed her and forced her off the trek and forcefully sexually penetrated her first with his fingers and then with his penis. The offender was sentenced to 8 years, 4 of which were suspended on condition.
    
21. The State v Paul Wakara; CR 914 of 2006( Unnumbered and unreported judgment dated 19 September 2006 per Lenalia, J): There the offender forced the 10 year old victim to have sex with him. Even though the victim did not sustain any injuries the offender was sentenced to 10 years imprisonment.
    
22. The State Langer Tonu; CR 405 of 2013 (Unreported and unnumbered judgment dated 04^th October 2016): The offender there pleaded guilty to sexually penetrating the victim who was 15 years 10 months and 18 days. They were in a boy/girl relationship. The offender had approached the victim as she was bathing in the sea. Upon seeing him the victim waded ashore and they moved to a secluded spot along the beach and they had consensual intercourse. The offender pleaded guilty, was a first time offender and here was an element of consent involved. The victim was also less than two months from the age of consent. I sentenced to 5 years less time in custody. None of the balance was suspended.
    
23. The State v Eric Puropuro (2014) N5959: The offender was 35 years old and his victim 13 years old. The offender pleaded guilty to two counts of sexually penetrating the victim on two separate occasions over two successive days but within a period of 24 hours. The offender met the victim on the road one evening and took her to his house and had sex with her. He then had sex with her again the next morning. The victim was sexually active at 13 years of age. She was a destitute child whose parents had simply abandoned her to her wayward ways. She also behaved like an adult, had left school and had had a child already. Despite that I was of the view that the offender had taken advantage of her vulnerability and sentenced him to 8 and 9 years respectively which I ordered to run concurrently.
    
24. The State v Rommy Frank; CR 607 of 2016 (Unnumbered and unreported judgment dated 06 March 2019): There I found the offender guilty after trial for sexually penetrating his young aunt who was 15 years 8 months and 2 days old. He had lured her into his room after the victim had come looking for betel nut. There was serious breach of trust involved as the offender, though older than the victim. was very closely related to her. The victim also fell pregnant and had to leave school as a result. The offender showed no remorse and even though he was a first time offender, I sentenced him to 9 years imprisonment, none of which was suspended.
    

DELIBERATIONS

25. There is no doubt that this offence is very prevalent, not only here in the Autonomous Region, but right around the country and globally. Sexual abuse of children (– paedophilia) is so endemic that it has become a scourge in almost every society in the world.
    
26. In The State v Rommy Frank (supra) I made the following which I think is worth repeating here –
    

"The advent of the internet has brought about a new dimension to this despicable crime. The ease of access to pornographic websites has flamed the insatiable and diabolical lust of a good number of people in our society for helpless and vulnerable children. Perpetrators come in every shade and colour irrespective of social status in society. We have had before us in this Court, Village Court Magistrates, Peace Officers, Pastors and School Administrators, in addition to the many fathers and close relatives, and numerous others.

Fathers and close relatives, men of the cloth and famous entertainers have been some of the worst offenders. The global news nowadays is inundated with news of abject abuse of children. This is a global problem of mammoth proportions which has left behind generations of emotionally damaged survivors. And as we speak thousands, if not, millions more children are being abused globally in the sanctity of their homes or in villages, towns and cities and even in their churches by evil men.

Children have become mere objects of sex sadly to a good number of people in our societies who are supposed to provide support, love and guidance to this most vulnerable and defenceless group of people. To aggravate an already grave, abhorrent and despicable behaviour, we are told (and this is supported by empirical evidence from court reports themselves) that the great majority of perpetrators are people who are known to, or related to victims. ..."

27. Bougainville has its’ fair share of this crime. Sexual offences, in fact only rank below homicides. That is a bad indictment against a society and a people who openly and ashamedly profess to be Christians.
    
28. The Court has a duty to impose a sentence that will not only punish you personally, but also deter you personally and those with similar inclinations as well. The Court will be failing in its duty to protect children if it does not mete out appropriate punishment for you.
    
29. By way of a general statement it does not matter if the child victims or survivors consent to being sexually penetrated or that they were willing partners. This is because the law – with the best interest of the child in mind – presumes that children are incapable of consenting to any act of sexual nature and understanding the consequences, including premature pregnancy and contraction of sexually transmitted infections (STI) to name but a few.
    
30. Your moment of lust to gratify yourself on your victim has and must cost you your freedom and you are now staring down the prospect of a further good number of years behind bars.
    
31. Your moment of lust has caused the victim shame and humiliation, not only from her peers and other members in your community. She had to leave school because of the ridicule that she received from fellow students. And of course she now has to unfortunately live with the stigma of her degradation by you, and for all we know this crime will have jeopardized her prospects of a happy marriage later in life. And like every girl who has been abused she runs the prospect of descending into a state of despondency, and her degradation will remain a permanent scar on her psyche.
    
32. This is yet another offence in which abuse of alcohol no doubt played a major role. You cannot, however, plead intoxication as an excuse for intoxication is an aggravating factor which I must hold against you. Because of the endemic situation here in Bougainville for substance abuse by youths and adults alike it is inevitable that we will expect more crimes of the nature to be committed. And it behoves the courts to meet this head on with the imposition of appropriately with stiff deterrent and punitive sentences.
    
33. And for your information, in case you have not yet already knew, your offence will leave a lot more victims than you probably ever imagined - victims who are totally innocent. These are your loved ones – your parents, your siblings and other relatives of yours. They will also suffer because of your offending. And you cannot blame this on anyone but yourself for unnecessarily putting them though stress as well.
    
34. So what then should be an appropriate sentence for you?
    

APPROPRIATE SENTENCE

35. The circumstances of your case are a bit similar to those in The State Rommy Frank (supra). The victim there got pregnant and had to leave school. There was, however, a very close relationship of trust which necessitated a sentence of 9 years.
    
36. Here the State has called for the maximum sentence, but as I said at the outset, this is not a worst case which should attract the maximum penalty.
    
37. In the circumstances I should think that an appropriate sentence for you ought to be similar to that of Rommy Frank though the circumstances there were a lot more serious. I will therefore sentence you to 8 years imprisonment less any time which you may have spent in pre-sentence detention.
    
38. And to send a stern message to would be offenders none of the resultant sentence will be suspended. You have the right to appeal to the Supreme Court within 40 days from today.
    

Ordered accordingly.
______________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Prisoner